Evidence Act 2011

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

For this part, a fact mentioned in subsection (1) is an asserted fact.

For the purposes of deciding under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Note Subsection (3) was inserted as a response to the decision of the NSW Supreme Court in R v Hannes (2000) 158 FLR 359.

Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under a regulation made under an Act other than this Act to the extent to which the regulation provides that the certificate or other document has evidentiary effect.

Note Specific exceptions to the hearsay rule are as follows:

 evidence relevant for a non-hearsay purpose (s 60)

 first-hand hearsay:

– civil proceedings, if the maker of the representation is unavailable (s 63) or available (s 64)

– criminal proceedings, if the maker of the representation is unavailable (s 65) or available (s 66)

 contemporaneous statements about a person’s health etc (s 66A)

 business records (s 69)

 tags and labels (s 70)

 electronic communications (s 71)

 Aboriginal and Torres Strait Islander traditional laws and customs (s 72)

 marriage, family history or family relationships (s 73)

 public or general rights (s 74)

 use of evidence in interlocutory proceedings (s 75)

 admissions (s 81)

 representations about employment or authority (s 87 (2))

 exceptions to the rule excluding evidence of judgments and convictions (s 92 (3))

 character of and expert opinion about accused people (s 110 and s 111).

Other provisions of this Act, or of other laws, may operate as further exceptions.

Examples

1 D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have happened. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.

2 P had told W that the handbrake on W’s car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective.

3 W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D’s possession was the video cassette recorder bought by W.